On Tuesday, April 28, 2020, Thomas Thorelli of Thorelli & Associates participated in a French webinar organized by International Management Solutions, the World Trade Center Rennes-Bretagne and the United States Consulate for the Great West concerning the legal, accounting and tax aspects of doing business in the US in the wake of Covid-19. This virtual conference has been recorded and is now available for future viewing. To access the Microsoft Teams recording of the webinar, please click here.

Posted on April 30, 2020

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COVID-19: IMMIGRATION UPDATE

We hope you are doing well and managing in these challenging times. The President’s proclamation signed last week caused considerable concern for us all. In fact, the current order has done little to change the immediate immigration status quo. Below are several key points regarding the language of the order, which pertains to immigrant visas only:

Individuals outside the U.S. awaiting the issuance of immigrant visas are subject to a 60-day hold.

The proclamation provides exceptions to its restrictions for certain categories of immigrants, including: certain healthcare professionals, aliens seeking to enter the United States pursuant to an EB-5 investor visa, and spouses and children of U.S. citizens (not parents).

The Diversity Visa Lottery has been placed on hold.

U.S. citizens, lawful permanent residents, and those holding valid immigrant visas on the effective date of the Proclamation, are not subject to the proclamation.

The Proclamation is not retroactive, and no valid visas will be revoked under the proclamation.

Individuals filing cases inside the U.S. should not be affected by the language of the current order.

As presently most U.S. Embassies and Consulates are not conducting visa interviews, the order will have little effect on the current situation. However, the President also stated that this order will be reviewed prior to expiry, and could be extended or expanded, potentially to include non-immigrant visas. While we do not know at this time when additional orders may be forthcoming, we advise all of our clients plan strategically. We also recommend that current foreign national employees in the U.S. should avoid international travel, when possible, and file extensions well in advance of their expiration dates, especially given the USCIS suspension of premium (expedited) processing. Employees currently outside the U.S. should secure the first available visa interview once U.S. embassies and consulates resume normal operations during the coming weeks or months.

In other immigration news, USCIS is readying offices to reopen on or after June 4, including in-person services at its field offices, asylum offices, and application support centers (ASCs). When USCIS again resumes operations for in-person services, USCIS will automatically reschedule ASC appointments due to the temporary office closure. Individuals will receive a new appointment letter in the mail. Meanwhile, although USCIS has suspended its premium processing service, USCIS continue to accept filings and process petitions.

We know this is a difficult time for everyone, but we remain ready to assist you with your immigration goals. Please do not hesitate to reach out with any questions.

Thorelli & Associates

Posted on April 29, 2020

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PPP Eligibility Expands to Foreign Owned US Companies

As previously mentioned in our Covid-19 Newsletter, the key benefit available is a forgivable loan under the Paycheck Protection Program (“PPP”). Although the initial $350 billion-dollar funding has been used up, Congress has now approved additional funding of $310 billion for the PPP. We believe it is crucial to file your application immediately in order to secure funding, as funds will likely be allocated on a “first come, first serve” basis. What follows are a few additional facts related to the PPP.

Foreign-Owned US Businesses Are Eligible for The PPP Loan Program:

• At SBA: Small business = 500 employees or less;

• PPP application form requires disclosure of all significant ownership;

• SBA Affiliate test counts the employees of the corporate owners in addition to the employees of the applicant to determine whether you have 500 employees or less;

• For foreign owner affiliates, this will normally include the foreign owner’s employees worldwide;

• But for PPP, an SBA Interim Final Rule provides a second option for counting employees of the applicant and its affiliates;

• If, combined, the US company and the foreign owner have less than 500 employees with a “principal place of residence” in the US, then the US company will qualify for PPP.

• As of April 16, 2020, the first $350B in PPP funds had been committed.

• Congress has now approved an additional $310B to replenish funding for the PPP.

• Applicants need to be ready when the new application period opens.

• Even if you were rejected before, the new SBA Interim Final Rule (which issued after the start of the first application period) clarifies the affiliate rule and should help you get approved.

We will continue to keep you updated as the rules and regulations relating to Covid-19 evolve. Please do not hesitate to contact us concerning any further questions you may have related to the Paycheck Protection Program, or any other questions concerning the legal aspects of the Covid-19 pandemic’s impact on doing business in the US. We remain open and ready to assist you with all your legal needs.

May you have continued good health and best wishes during this unprecedented time.

On April 3, 2020 participating banks and lending institutions will begin accepting applications for loans under the Paycheck Protection Program (PPP) authorized under the CARES ACT. The US Treasury Department has issued a fact sheetand a current application form. Not every small business will qualify for the loans. We can help you decide whether you are eligible for a loan and in what amount. The available loan pool is expected to be exhausted long before the June 30, 2020 application deadline. We strongly advise our clients to act promptly on this opportunity.

Posted on April 3, 2020

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Dear Clients:

We hope that you, your families, and employees are all doing well and are healthy during the uncertain times caused by the Covid-19 pandemic. We are contacting you to get an understanding of how Covid-19 has affected your business and to notify you of new laws that may apply to your business. If you have any questions or concerns you would like to discuss, we are here for you.

Many clients have contacted us with breach of contract related questions. Many businesses will not be able to fulfill contractual obligations due to Covid-19. Some businesses will be forced to cease operations because of economic conditions, while others will be forced to temporarily suspend operations because State law requires it. Questions include:

What happens if we cannot fulfill a contractual obligation with our business partner?

How have we been affected by current Executive Orders?

Does force majeure apply?

Can we terminate the contract?

Do we have notice requirements before we terminate?

What is our damage liability exposure?

If a lawsuit is filed, where can it be filed and what happens next?

National and International authorities have made formal declarations that the coronavirus is a pandemic and have created significant constraints on trade. In most cases this will be enough to invoke the standard force majeure provision or related defenses such as impossibility or frustration of purpose. However, the party wanting the protection of these defenses needs to take additional action. Under most state laws, that party will have to make some effort to establish that conditions related to the pandemic have caused the inability to perform. A claim that alternative means to perform contract obligations are more expensive is unlikely to be persuasive by itself. If a party can perform some parts of a contract but not others, force majeure will be similarly limited. In all cases, if you think you may need the protection of force majeure or similar defenses, creating a record of the evidence that supports your claim and providing some notice to the other contracting parties is strongly advised. We are available to go through this process with you.

We recommend that you also consult with your insurer if you have coverage for Business Interruption. All insurance providers require prompt notice from their policyholders when there is a potential claim. We can work with you on both the content and timing of this notice.

Finally, many of our clients have also contacted us for support related to Covid-19 employment-related issues. Questions include:

What to do if an employee contracts Covid-19?

What to do if an employee cannot come to work because his/her child no longer has daycare or school due to government ordered closings?

What if we need to reduce hours, reduce compensation, or terminate employees because of economic concerns?

Can we force employees to use paid vacation?

Can we ask employees to take unpaid leave?

Can we continue to operate and require that employees come to work?

The answers to these questions are changing each day due to new federal and state laws being passed to address the Covid-19 impact. As you may have heard, on March 18th the Senate passed, and President Trump signed, the Families First Coronavirus Response Act which expands the federal Family Medical Leave Act and introduced paid sick leave to many U.S. employees. Governors of many States have also issued “shelter at home” or “stay at home” orders that affect whether businesses can continue to operate and whether employees can continue to travel to work. Under the current Stay at Home Order in Illinois, Thorelli & Associates is an “Essential Business” and therefore is exempt from most restrictions. We remain able to access our office and your files at all times.

If any of these questions apply to you, please do not hesitate to contact us. We are happy to discuss with you and provide you guidance on legal compliance and best practices.